Protecting Intangible Assets

Your business grows and survives based on the decisions you make about how to invest – not simply how you invest your money, but how you invest your time as well.

They May Be Your Most Valuable Ones

by Kelly G. Swartz

Your business grows and survives based on the decisions you make about how to invest – not simply how you invest your money, but how you invest your time as well. The assets acquired by investments of money are often tangible and therefore easily identified and readily protected. However, the assets created by investments of time are often intangible, and therefore they are frequently undervalued and not fully protected.

In order to protect these intangible assets, they must first be identified. Your intangible assets include the things that are special about you and help to create business. These assets may be the quality of service you provide, the uniqueness of the product you sell, or the effectiveness of the results you create. Often, the intangible things that you invest in can be protected as intellectual property assets.

Taking Inventory

Begin with answering this question: Why do customers buy from me? Create a comprehensive list of what you believe are the answers to that question. Then survey your customers, either formally or informally, as to why they patronize you instead of competitors. Are the answers what you expected? Perhaps you learned that your business has value you had overlooked. Or maybe what you thought of as an asset turned out not to be important to your customers after all. Now that assets have been identified, you can move on to identifying which assets need to be protected.

Review the assembled list of assets and prioritize them. What is your most valuable asset? What item on your asset list would you least like to lose? What item creates the most business or growth potential for you? Depending on the stage of your business, you may value assets that foster growth potential more than those that increase retention of existing clients, or perhaps it is the other way around. Those assets most important to your business should be ranked at the top of your asset list.

Starting with your most valuable asset, identify what steps you are taking to protect each asset. It may be more apparent how to protect the tangible assets rather than those that are intangible. For example, physical assets may be secured or monitored after hours, but how do you lock up valuable, intangible intellectual property? Even though it may appear more difficult to secure these non-physical assets, there are often practical, affordable ways to do so.

For Instance…

Let’s say you own a restaurant and your customers love to eat your food because you serve everything with your own Super Secret Special Sauce. If the restaurant next door used Super Secret Special Sauce, you would lose business. This Super Secret Special Sauce, and your revenue stream, could be protected as a trade secret. If properly protected, you may be able to prevent others from serving the Super Secret Special Sauce if an employee were ever to steal the recipe or if it were otherwise wrongfully obtained by a competitor. But calling this recipe a secret is not enough to fully protect it; you must take proactive steps to establish the fact that this recipe is entitled to trade secret status under Florida Statutes.

Or if your customers come to your store and buy your WHOZIWATZIT product because they have learned that anything with the WHOZIWATZIT name on it can be counted on to be of outstanding quality, you may want to take steps to obtain a trademark registration and thereby prevent others from being able to use the WHOZIWATZIT name without your permission. Without a trademark registration, competitors may be able to sell items they call WHOZIWATZIT, even though they are inferior to your authentic WHOZIWATZIT product.

Many businesses have aspects of more than one kind of intellectual property that add value to the company. Things that set you apart from your competition, including your reputation, your products, your processes, and your secrets, may be some of the most valuable assets that you own. Take steps to protect this intellectual property the same way you protect your physical property. Protection of your most important assets, whether tangible or not, is vital to the growth and health of your business.

Kelly G. Swartz is an attorney with Ingenuity Law inMelbourne, focusing on Intellectual Property including patent, trademark, copyright and trade secret law.